In this case, Mueller is an illegitimately appointed prosecutor looking for crimes for which to convict people. The presumption of innocence at the heart of the American justice system is entirely absent.
We are literally swinging in the balance between the rule of law and the rule of Mueller. These are very important months for our constitutional Republic.
CHAPTER TWELVE
DRAINING THE SWAMP
The Washington swamp is vast. It has been steadily growing since the city became our nation’s permanent capital in December 1800 and President Jefferson moved there from Philadelphia in early 1801.
The swamp is a natural habitat for a large swath of the anti-Trump coalition.
Legions of lawyers, lobbyists, and media members have been attracted to this elite ecosystem. They seek to influence the movements of the federal government, steer lawmakers toward decisions that benefit their fellow swamp denizens, and—most importantly—achieve their goals by sidestepping the American people and manipulating the government.
However, there is a core to the swamp that binds the entire biome together—the entrenched federal bureaucracy.
Without the bureaucrats, the lawyers and lobbyists would have a harder time getting their words woven into legislation, and the members of the media would have a harder time getting the leaked documents and insider gossip on which they thrive.
This ability to almost invisibly shape law and political opinion is a tremendous power, which the members of the bureaucracy wield with vigor. The bureaucracy works with many branches of the anti-Trump coalition.
For the left-wing factions of the coalition, the bureaucracy provides a way to impose a radical worldview on Americans without having to win elections or pass laws in Congress. If you want to change the behavior of Americans, you simply start proposing myriad federal rules that incrementally block whatever behavior you are trying to stop—energy exploration, logging, certain agricultural practices, or the consumption of sugary drinks, for example.
For the orderly institutionalist branch of the anti-Trump coalition, the bureaucracy provides all the speed bumps one could wish for to slow-walk or completely halt reforms proposed by an “upstart” president or lawmaker.
For the elite wing of the anti-Trump coalition, the bureaucracy provides a back channel to make sure your interests are protected from new rules governing business, commerce, or some other sector.
Finally, some in the anti-Trump coalition like the bureaucracy because it keeps them from having to do real work. It is far simpler for politicians to delegate fact-finding and analysis to federal agencies than to do the research themselves. Furthermore, this carries the added benefit of being able to use whatever the agency finds as cover for not being able to deliver on campaign promises or other pledges.
For all of these reasons, the people of Trump’s America despise the bloated bureaucracy.
Hardworking Americans in agriculture, construction, and other blue-collar fields constantly grapple with unnecessary, costly regulations that force them to spend more time filling out paperwork than plying their trade. Some of these unlucky Americans only interact with federal bureaucrats when they learn that they have unwittingly broken some obscure federal regulation and are required to pay a fine.
Similarly, those in Trump’s America who are being harmed by unreasonable regulations and are desperate for change see the bureaucracy as a slow-moving, inefficient, broken machine that is keeping them from resolving their problems.
Naturally, the small business owners who are part of Trump’s America are fed up with big business insiders getting deals from their bureaucratic relationships that tilt the playing field or eliminate competition by regulation.
Moreover, virtually everyone in Trump’s America rejects the notion that the federal government can impose rules and restrictions upon the American people without any accountability or recourse. The people of Trump’s America believe wholeheartedly that government requires the consent of the governed. For them, the bureaucracy is government growing beyond the reach and control of the people.
This is why Americans responded so positively to President Trump’s campaign promise to drain the swamp and bring its inhabitants into the light of day. Since Trump took office, he has been doing just that in the most effective way possible—by limiting the power of the bureaucracy. Through deregulation, and smart use of his appointment powers, President Trump has been fighting a battle against the bureaucracy since day one.
And the bureaucrats have been fighting back.
THE FOURTH BRANCH OF GOVERNMENT
We can learn a great deal about our federal bureaucracy by watching the 1980s British sitcom, Yes, Minister.
The very first episode introduces the story of the newly appointed Right Honorable James Hacker, MP, Minister for Administrative Affairs, and his pursuit to uphold and abide by his values of having a transparent, open government system.
At every turn, this well-intentioned but naive politician is comically manipulated by members of the British bureaucracy—especially via the tactful string-pulling of the clever political puppeteer Sir Humphrey Abbleby, the minister’s senior-ranking chief bureaucrat.
When the minister enters his new office for the first time, he meets Sir Humphrey, who briefs the minister on the structure of the department he will be overseeing. Here’s how it goes:
Minister: Who else is in this department?
Sir Humphrey: Well briefly, sir, I am the Permanent Under Secretary of State, known as the Permanent Secretary. Woolley here is your Principal Private Secretary. I too have a Principal Private Secretary and he is the Principal Private Secretary to the Permanent Secretary. Directly responsible to me are ten Deputy Secretaries, 87 Under Secretaries and 219 Assistant Secretaries. Directly responsible to the Principal Private Secretaries are plain Private Secretaries, and the Prime Minister will be appointing two Parliamentary Under-Secretaries and you will be appointing your own Parliamentary Private Secretary.
Minister: Can they all type?
Sir Humphrey: None of us can type, Minister. Mrs. Mackay types: she’s the secretary.
This is a satirical show, and it is meant to be funny. However, like all good satire, it exposes an important truth. This excerpt clearly illustrates how vast, complicated, inefficient, and deeply entrenched bureaucracies perpetuate themselves and persist through changes in elected government.
This exact same model, without the humor, exists in the United States in the bureaucracy. Our bureaucracy has ballooned along with the federal government itself over the last century. Just like Sir Humphrey, the members of the bureaucracy are accountable to no one, they pursue their own agendas regardless of the will of “we the people” as expressed through elections, and they work tirelessly to undermine administrations they oppose.
Aside from being a large, inefficient model that produces unnecessary regulations, the bureaucracy poses a fundamental threat to our constitutional system of government, our liberty, and the rule of law.
The permanent continuation of the swamp, specifically the bureaucracy, threatens the foundation of our democracy by taking power away from American voters and placing it in the hands of unelected career bureaucrats in Washington.
In the U.S. government in 1790, there were just 1,000 nonmilitary workers, but today, there are about 2.8 million.1
This dramatic surge in employees and the creation of the modern bureaucracy has essentially led to the establishment of a “fourth branch of government,” that “now has a larger practical impact on the lives of citizens than all the other branches combined,” according to Jonathan Turley, the Shapiro professor of public interest law at George Washington University.2
Members of this fourth branch of government answer only to their bureaucratic bosses and colleagues who are equally entrenched in the Washington swamp. They don’t answer to elected officials or the American people.
As such, bureaucrats have implemented thousands of rules and regulations in efforts
that undermine the legislative, judicial, and executive branches.
In fact, today, instead of laws strictly being made by Congress, most federal actions, which any normal American would consider laws in the practical sense, are issued by the bureaucracy in the form of rules and regulations. According to Turley, in 2007, Congress successfully enacted 138 laws. However, that same year, federal agencies finalized 2,926 rules including 61 major regulations. With how rapidly these agencies are putting these changes into effect, and with the now 2.8 million bureaucrats,3 there’s no possible way that Congress could effectively oversee the bureaucracy’s efforts.
Not only do these agencies effectively make laws without Congress, they enforce them and rule on their validity in administrative courts that sidestep the judiciary. As a result, Turley writes that Americans are 10 times more likely to be tried by an agency than an actual court of law.
Administrative judgments are made every day about alleged infractions. As bureaucracies get used to making decisions about citizens’ lives, they become more empowered.
This is a mockery of due process. Professor Gary Lawson of the Boston University School of Law explained in his 1994 article “The Rise and Rise of the Administrative State” how these courts operate:
Consider the typical enforcement activities of a typical federal agency—for example, of the Federal Trade Commission. The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.
And just as the Fourth Branch strips power from the legislative and judicial branches, it serves to undermine the authority of the president as well. President Harry Truman said, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.”4 And how could he, when such a small slice of federal positions are filled by executive appointees. Especially since these appointees serve for as few as two to as many as seven years?
The power of presidential appointees is further weakened by the very time-consuming process of finding them, getting them through the White House selection process and the FBI clearance, and then getting them through the Senate confirmation process. There are presidential appointee positions which have been vacant for well over a year and a half. If a frustrated nominee withdraws, the vacancy remains until another person can go through the same vetting process. When K.T. McFarland concluded the Senate Democrats would never allow her to become ambassador to Singapore, she withdrew. The job had already been open for 13 months. Now, the White House will have to find a new candidate and go through the same process. At the earliest, Singapore will see a new American ambassador only after an 18-month vacancy.
Even when people are confirmed, they often find the long hours, the limited pay (most presidential appointees are taking a pay cut to serve their country, some are losing millions of dollars in order to be helpful citizens), the frustration with the red tape, the exhaustion from interagency fighting, the constant struggle with the White House staff, all lead to a very short retention. On average, appointees serve for two and a half years, while a quarter stay on fewer than 18 months.5
Given this constant churning and long periods of vacancy it is little wonder the Pentagon term for the presidential appointees is “the summer help.”
This process strengthens the permanent state and weakens the ability of the American people to insist on change through the election process.
THE CONSTITUTIONAL MODEL
Allowing the bureaucracy to undermine the three branches of government directly contradicts the system of checks and balances that were put in place by our Founders. They were concerned primarily with ensuring individual liberty, peace, and prosperity through limited government made up of three co-equal branches, which could be held accountable to the American people.
Laws were to derive from the elected legislative branch—not agencies. Most importantly, the Founders believed that the American government could not rule without the consent of the governed.
Nowhere in the Constitution does it call for a fourth branch of government comprised of unelected bureaucrats.
As the late Justice Antonin Scalia has written, “Too many important decisions of the Federal Government are made nowadays by unelected agency officials… rather than by the people’s representatives in Congress.”6
Even liberal Justice Stephen Breyer acknowledged, “[T]he public now relies more heavily on courts to ensure the fairness and rationality of agency decisions.”7
This fact is fundamentally antithetical to the constitutional model of our government and gives bureaucrats control of the destiny and future of our country.
This is exactly what James Madison warned against in “Federalist No. 47” when he wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may just be pronounced the very definition of tyranny.”8
The threat of tyranny and unchecked, opaque power that is unconstitutionally vested in the bureaucracy threatens the well-being of our nation. It will lead to nothing but abuse and inevitable corruption.
THE FAILURE OF THE BUREAUCRACY
Another gem from Yes, Minister illustrates a quality that entrenched bureaucrats also use to their advantage—the ability to hide their mistakes.
As the top bureaucrats are sitting in an opulent room discussing their plans to undermine the new minister’s goal to make government more open, one of them points out, “If people don’t know what you’re doing, they don’t know what you’re doing wrong.”
Unfortunately, prior to the election of President Trump, this perfectly described the American bureaucratic system.
Consider the Department of Veterans Affairs (VA) scandal that broke in 2014. Were it not for whistleblowers who uncovered blatant neglect shown toward our nation’s heroes by a system charged with providing them the health care they need and deserve, many more veterans would have suffered.
Unreasonably long wait times and false record-keeping by VA officials at facilities across the country resulted in thousands of veterans not receiving the vital care they needed. Shockingly, 1,700 veterans were specifically kept on waiting lists and waited an average of 115 days for an initial primary care appointment at a VA medical center in Phoenix.9
The National Review published an article in 2016 that outlined that despite two years of hearings, investigations, testimonies, and increases of funding, conditions had not improved for veterans seeking treatment since the scandal broke.10
The National Review reported that wait times for care had even increased in some places and records of these wait times had continued to be manipulated. The article cites the wait times for those applying for disability claims had stayed at an average of 389 days for first-time applicants. The figure was more than 770 days for applicants in Baltimore and 630 days for those in Boston.
Backlogged disability claims had declined in number, but the number of backlogged appeals claims at the time the articl
e was published was more than 255,000. Many of these veterans had sadly been waiting for their health issues to be addressed for more than three years.
Further, the article asserts that those responsible for the despicable treatment of our country’s heroes were not being adequately held accountable for their unjustifiable behavior and the irreparable damage they caused.
According to the National Review:
Efforts to hold negligent or dishonest—sometimes even criminal—VA officials accountable have also met a brick wall. VA accountability rules aimed at senior managers were part of the same 2014 legislation [Veterans Access, Choice, and Accountability Act], but less than a handful of VA officials have actually been fired. The VA refuses to use this and other accountability tools, even against officials who defrauded the department of hundreds of thousands of dollars. Unsurprisingly, top VA officials and their Beltway enablers are opposed to stronger accountability legislation, which remains stalled in the Senate. Perhaps worst of all, the whistleblowers who exposed the scandal in the first place continue to be marginalized, targeted, and even spied on, as the Washington Examiner reported in January this year.11
It is nothing short of unfathomable as to why these VA administrators were not being properly held accountable for their actions under President Obama.
In fact, the Washington Post exposed how far the bureaucracy went to protect its members from repercussions. According to one Post article:
More than 2,500 employees at the Department of Veterans Affairs were placed on paid leave for at least a month [in 2014], and the agency acknowledges it didn’t track the details and why they were sent home.…
The total tab in salary alone for these absences—ranging from 30 days to more than a year for 46 employees—came to $23 million, according to a report provided to several congressional Republicans.12
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